DWARIKA PRASAD Vs. SAVITRI DEVI

JUDGEMENT

(1.) This second appeal was listed on 29th July 1975 under Chapter XII Rule 4. The case was called but as no application signed by the party or his counsel along with requisite court fee stamps was presented the appeal was dismissed. An application was moved on 18th August 1975 under Sec. 151 Code of Civil Procedure with a prayer to recall the order. The prayer was opposed by the other side and reliance was placed on a decision reported in Raja Ram Dayalu v/s. Smt. Vimta Rani, 1975 ALJ 309. Brother N.D. Ojha did not agree with the ratio of the decision and referred the following question for consideration by a Division Bench:

(2.) Chapter XII of the Rules of Court deals with service of notice and summoning of record. Rule 4 lays down the consequences of non -payment of process fee. The rule pertains in the realm of procedure the basic object of which is to aid in adjudication of rights Rules of procedure are handmaids of justice. They are meant to advance and facilitate its attainment rather than thwart it. Courts are not to act upon principle that every procedure is to be taken as prohibited unless it is expressly provided, but ought to act on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. The rule exhausts itself once an order is passed. It does not ordain nor is there any other rule which takes away the right of a litigant to invoke inherent powers of the court. Order IX Rule 4 and Order XLI Rule 19 of the Civil Procedure Code are instances where there is express provision for moving the court for recalling of order in more or less similar circumstances on sufficient grounds. The basic concept of sufficient cause is bona fide and good faith. Taking clue from these provisions there can be no doubt that if sufficient cause is established courts cannot be deemed powerless to recall an order which may perpetrate injustice. To recall an order in such circumstances is not doing indirectly what is prohibited directly but proceeding further from a stage where the operation of rule comes to an end. It has been held by their Lordships of the Supreme Court in a decision Sangram Singh v/s. Election Tribunal : AIR 1955 S.C. 425:

(3.) We have also been referred to a decision of a Division Bench in Civil Revision No. 1359 of 1974 Sri Hart Prakash v/s. Ram Krishna Dayal Ram. Due to scarcity of process fee stamps the case was listed under Chapter XII Rule 4 and the Court while accepting the process fee observed: